Title

Authors

Abstract

This article provides a fresh theoretical perspective on the most important development in immigration law today: the convergence of immigration and criminal law. Although the connection between immigration and criminal law, or “crimmigration law,” is now the subject of national debate, scholarship in this area is in a fledgling state. This article begins to fill that void. It proposes a unifying theory – membership theory – for why these two areas of law recently have become so connected, and why that convergence is troubling. Membership theory restricts individual rights and privileges to those who are members of a social contract between the government and the people. It is at work in the convergence of criminal and immigration law in marking out the boundaries of who is an accepted member of society.

Membership theory provides decisionmakers with justification for excluding individuals from society, using immigration and criminal law as the means of exclusion. It operates in the intersection between criminal and immigration law to mark an ever-expanding group of outsiders by denying them the privileges that citizens hold, such as the right to vote or to remain in the United States. Membership theory manifests in this new area through certain powers of the sovereign state: the power to punish, and the power to express moral condemnation.

This use of membership theory places the law on the edge of a crimmigration crisis. Only the harshest elements of each area of law make their way into the criminalization of immigration law, and the apparatus of the state is used to expel from society those deemed criminally alien. The result is an ever-expanding population of the excluded and alienated. Excluding and alienating a population with strong ties to family, communities, and business interests in the United States fractures our society in ways that extend well beyond the immediate deportation or criminal penalty.

This article provides a fresh theoretical perspective on the most important development in immigration law today: the convergence of immigration and criminal law. Although the connection between immigration and criminal law, or “crimmigration law,” is now the subject of national debate, scholarship in this area is in a fledgling state. This article begins to fill that void. It proposes a unifying theory – membership theory – for why these two areas of law recently have become so connected, and why that convergence is troubling. Membership theory restricts individual rights and privileges to those who are members of a social contract between the government and the people. It is at work in the convergence of criminal and immigration law in marking out the boundaries of who is an accepted member of society.

Membership theory provides decisionmakers with justification for excluding individuals from society, using immigration and criminal law as the means of exclusion. It operates in the intersection between criminal and immigration law to mark an ever-expanding group of outsiders by denying them the privileges that citizens hold, such as the right to vote or to remain in the United States. Membership theory manifests in this new area through certain powers of the sovereign state: the power to punish, and the power to express moral condemnation.

This use of membership theory places the law on the edge of a crimmigration crisis. Only the harshest elements of each area of law make their way into the criminalization of immigration law, and the apparatus of the state is used to expel from society those deemed criminally alien. The result is an ever-expanding population of the excluded and alienated. Excluding and alienating a population with strong ties to family, communities, and business interests in the United States fractures our society in ways that extend well beyond the immediate deportation or criminal penalty.

The article begins with a dystopia, narrating a future in which criminal and immigration law have completely merged, and membership theory has resulted in extreme divisions in our society between insiders and outsiders – between the included and the alienated. The rest of the article describes the seeds of that future in the past and present. Part II describes the present confluence of immigration and criminal law. Part III sets out the role of membership theory in those areas in excluding noncitizens and ex-offenders from society. It details the role of sovereign power in drawing and enforcing those lines of exclusion. The article concludes by describing the potential consequences of the convergence of these two areas and the use of membership theory to justify decisions to exclude.

Disciplines

Civil Rights and Discrimination | Criminal Law | Criminal Procedure | Human Rights Law | Immigration Law | Law and Politics | Law and Society | Law Enforcement and Corrections | Legal History | Public Law and Legal Theory